ORDER : Kuldeep Mathur, J. 1. This application for bail under Section 483 of BNSS has been filed by the petitioner who has been arrested in connection with F.I.R. No.64/2022 registered at Police Station Taranagar, District Churu, for offences under Sections 8/15 and 29 of the NDPS Act. 2. Learned counsel for the petitioner submitted that as per prosecution, the SHO of Police Station Taranagar, District Churu during the nakabandi at NH-52 Hadiyal intercepted a truck bearing registration No. PB-11-BA-7795. The police team led by SHO of Taranagar after following the due process of law conducted search of the offending vehicle and recovered the contraband (poppy husk/straw) weighing 141.5 kgs from five plastic bags. The driver of the offending vehicle namely Yashwant Kumar and co-passenger Arjun were arrested on the spot. 3. Learned counsel submitted that the co-accused Yashwant Kumar in the information supplied by him under Section 27 of the Indian Evidence Act has stated that he had procured the recovered contraband from the present petitioner. Learned counsel further submitted that apart from the disclosure statement of co- accused Yashwant Kumar, there is no other direct/circumstantial evidence available on record indicating involvement of the petitioner in commission of the alleged crime. Learned counsel submitted that the co-accused Yashwant Kumar (S.B. Cr. Misc. 2nd Bail Application No.5572/2023) has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 17.09.2024. 4. Lastly, learned counsel submitted that the petitioner is in judicial custody; the investigation against the petitioner has already been concluded and the trial of the case is likely to consume sufficiently long time. On these grounds, he implored the Court to enlarge the petitioner on bail. 5. Per Contra, learned Public Prosecutor has vehemently opposed the bail application. However, he was not in a position to refute the fact that the contraband (greater than commercial quantity) was not recovered from the conscious and exclusive possession of the present petitioner. He was also not in a position to refute the fact that the co-accused Yashwant Kumar from whose conscious possession, the contraband (greater than commercial quantity) was recovered, has already been enlarged on bail by a co-ordinate Bench of this Court. 6. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 7. He was also not in a position to refute the fact that the co-accused Yashwant Kumar from whose conscious possession, the contraband (greater than commercial quantity) was recovered, has already been enlarged on bail by a co-ordinate Bench of this Court. 6. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 7. The order dated 17.09.2024 passed by the co-ordinate Bench of this Court while granting bail to the co-accused Yashwant Kumar is reproduced herein below for ready reference: “1. The jurisdiction of this court has been invoked by way of filing an instant second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 64/2022 2. Concerned Police Station Taranagar 3. District Churu 4. Offences alleged in the FIR Sections 8/15, 25 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 04.04.2023 2. The first bail application of petitioner came to be disposed of by this Court vide order dated 21.12.2022 passed in SBCRLMB No.15753/2022 with the liberty of file afresh after recording the statement of Seizing Officer. Now the statement of Seizing Officer is recorded. Hence, the instant bail application. 3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. The petitioner is behind the bars since 27.02.2022. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. 4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 5. Have considered the submissions made by both the parties and have perused the material available on record. 6. Vide order dated 22.08.2024, this Court directed to summon a report from the trial Court regarding present status of the trial. 5. Have considered the submissions made by both the parties and have perused the material available on record. 6. Vide order dated 22.08.2024, this Court directed to summon a report from the trial Court regarding present status of the trial. In compliance of the said order, the letter No.441 dated 30.08.2024 has been received from the Court of Additional District & Sessions Judge, Taranagar, Churu wherein it has been mentioned that out of total 15 witnesses only ten witnesses have examined and few are yet to be examined. 7. It is revealing from the record that on 27.02.2022, the SHO Govindram along with his team made Nakabandi at NH 52 Hadiyal and intercepted a Truck bearing registration No.PB11 BA7795. The driver of the said vehicle was interrogated, who disclosed his name to be Yashwant and the person sitting by his side stated his name as Arjun. Whereafter search was conducted and 5 plastic bags containing poppy husk were recovered from the said vehicle. The weight of these bags was 141.5 kg. The petitioner and co-accused were arrested; the Investigating Officer took samples from the recovered articles, marked them and sent the same to the FSL for its chemical examination. After usual investigation, a case under Sections 8/15, 25 & 29 of the NDPS Act has been filed in the Court concerned. 8. Perusal of the statement of P.W. 1 Govind Ram and other prosecution witnesses it is revealing that the samples were not taken in his presence should be sent to the FSL for detection of contraband nor any of his superior officer had taught him about it. Not making inventory in accordance with the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act is a serious question which if decided in favour of the accused, then his conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty. 9. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty. 9. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:- “22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW- 5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence.” 10. In this instant matter too, the alleged contraband was seized on 27.02.2022, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made. 11. In this instant matter too, the alleged contraband was seized on 27.02.2022, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made. 11. This Court feels that though there is embargo contained under Section 37 of the NDPS Act regarding grant of bail in mattes pertaining to commercial quantity and some others and true it is that bail can only be granted when the twin conditions mentioned in the provision are satisfied but this Court feels that expressing final opinion to the effect that there are no reasonable ground to believe that the petitioner is not guilty may stifle or abort the judicial proceeding in the midway and then there would remain nothing for the trial Court to proceed further in the matter and as such, the moment, the bail is granted by observing the above in clear and express terms, it would be imperative for the trial Court to either discharge or acquit him. The continuation of the trial whereafter would be a futile exercise at one hand and on the other hand the same would amounts to an abuse of process of law. This Court is of the view that pending investigation or pending trial if a serious legal defect is observed in the case of the prosecution, which may prove fatal to the prosecution at the time of conclusion then instead of giving a definite opinion that he is not guilty of the offence, it would be suffice if the bail application is allowed by giving reasons regarding observance of legal defect only; but not by giving a final finding on that aspect. The view of this Court is based upon the gist of the judgment passed by Hon’ble the Supreme Court in the matter of Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023 , wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023 , wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra ) relevant to the present matter are reproduced below: “18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co- operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest. 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.” (Emphasis Supplied) 12. At the stageof hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, more than two and half years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. Further considering the fact that out of total 15 prosecution witnesses only ten could have been examined and it would take some more time in its conclusion. In the case of Mohd. Further considering the fact that out of total 15 prosecution witnesses only ten could have been examined and it would take some more time in its conclusion. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. Thus, in the peculiar circumstances of this case, I am of this view that the embargo contained under Section 37 of the NDPS Act would not come into the way of granting bail. 13. Accordingly, the instant second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so. ” 8. Having considered the rival submissions, facts and circumstances of the case, particularly the fact that the co- accused Yashwant Kumar from whose conscious possession, the contraband (greater than commercial quantity) was recovered, has already been enlarged on bail, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail. 9. Consequently, the bail application under Section 483 of BNSS is allowed. 9. Consequently, the bail application under Section 483 of BNSS is allowed. It is ordered that the accused-petitioner Jagdish @ Jagga S/o Bheru Lal Dangi arrested in connection with F.I.R. No.64/2022 registered at Police Station Taranagar, District Churu, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial. 10. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.